SC To Setup New Bench To Hear Pleas Against Polygamy And Nikah-Halala

Delhi/Hyderabad, March 23 (Maxim News):  The Supreme Court said that it will constitute a new five-judge constitution bench at an appropriate stage to take up petitions challenging the constitutional validity of polygamy and “nikah halala” among Muslims. 

Advocate Ashwini Upadhyay, who has filed a plea in connection with the issue, mentioned the matter before a bench headed by Chief Justice of India D.Y.Chandrachud.  The bench, also comprising justices P.S. Narasimha and J.B.Pardiwala, said that it will consider the matter.  The Chief Justice said, “At an appropriate stage, I will constitute a constitution bench.”

On August 30, a five-judge constitution bench comprising justices Indira Banerjee, Hemant Gupta, Surya Kant, M.M. Sundresh, and Sudhanshu dhulia issued a notice on the petitions and made the National Human Rights Commission (NHRC), National Commission for Women (NCW) and the National Commission for Minorities (NCM) parties to the matter and sought their response in the matter. 

However, two judges, Justice Banerjee, and Justice Gupta, have retired now, therefore there is a need to re-constitute the bench to hear a batch of pleas challenging the practices of polygamy and “nikah halala”

Upadhyay’s plea said the injury caused to the women as the practice of triple talaq, polygamy, and nikah-halala is violative of Articles 14, 15, and 21 of the Constitution and injurious to public order, morality, and health.  The plea sought a direction to declare Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, unconstitutional and violative of Articles 14, 15, and 21 of the Constitution.

“It is well settled that common law has primacy over the personal laws.  Hence, this court may declare that –Triple Talaq is cruelty under Section 498A of the IPC, 1860, Nikah0Halala is rape under Section 375 of the IPC, 1860 and Polygamy is an offense under Section 494 of the IPC, 1860 said Upadyyay’s plea.  

In august 2017, the top court held that the Muslim practice of triple talaq is unconstitutional and struck it down by a 3:2 majority, Polygamy allows a Muslim man to have four wives and once a Muslim woman has been divorced, her husband is not permitted to take her back even if he had pronounced talaq under the influence of any intoxicant unless his wife undergoes nikah-halala, which involves her marriage with another man, who subsequently divorce her so that her previous husband can remarry her.  (Maxim News) 

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